A proceeding under Article 32 is described as a constitutional remedy and the right to bring such proceedings before the Supreme Court is itself a fundamental right. If his grievance is that a right other than a fundamental right is violated, he will have to move the High Court having jurisdiction. Writ Petition along with Affidavit in support 3. It has adopted the liberal attitude in view of the peculiar socio-economic conditions prevailing in the country. The fundamental basis of the proceeding of quo warranto is that the public has an interest to see that an unlawful claimant does not usurp a public office. Therefore, this writ treated as protection against wrongful detention or to life and liberty of person. A writ of certiorari is a type of writ, which specifically seeks a judicial review; the action, in modern times, currently necessitates the issuance of an order by a higher court to direct a lower court, a public authority or tribunal to send the record in a given case for review.
Govinda Rao,12 the Supreme Court observed that the procedure of quo Warrato confers the jurisdiction and authority on the judiciary to control executive action in making the appointments to public offices against the relevant statutory provisions; it also protects a citizen being deprived of public office to which he may have a right. Writ of Certiorari: The writ of Certiorari is issued by the Supreme Court to a Lower Court or any other body to transfer a particular matter to the higher courts than itself. If there is no legal justification for that detention, then the party is ordered to be released. Advance Builders, the court directed the municipality to implement a planning scheme which was prepared by it and approved by the Government under the relevant statute but on which no action was taken for a considerable time. The jurisdiction of the High Court under Art 226 cannot be invoked if: The petition is barred by res judicata; If there is an alternative and equally efficacious remedy available and which has not been exhausted; If the petition raised questions of facts which are disputed; and If the petition has been made after an inordinate delay. Fundamental rights are therefore transcendental in nature and created and enacted in national and public interest and therefore they cannot be waived.
Any other authority may be Government itself. The discretionary powers entrusted to the different executives of the Government play substantial role in administrative decision making and immediately the settled principles of administrative law trap the exercise of powers. This writ is applicable to the public offices only and not to private offices. Moreover, the writ is not of punitive or of corrective nature. It is the person against whom writ of quo warranto is directed , who is required to show by what authority the person is entitled to hold the office.
There are five types of writs: namely, quo warranto, habeas corpus, mandamus, prohibition and certiorari. But the conditions allied with it are that Government acts in a judicial manner and the issue is regarding the determination of rights or title of a person. The jurisdiction of the High Courts under Art 226 is wider than that of the Supreme Court under Art 32. This writ is issued to a person in an office, the legality of which is being questioned. Justice Subbarao in the case of Basheshwar Nath v. Prerogative writs under Indian law Writs under Indian law are prerogative writs, a subset of writs, which are issued as an extraordinary remedy for aggrieved persons.
That there has been no effective alternative legal remedy. This ensures that a prisoner can be released from unlawful detention—that is, detention lacking sufficient cause or evidence. Primarily, the term as used in Roman literature indicates that a case will be heard. Collector of Customs , a writ of prohibition is an order directed to an inferior Tribunal forbidding it from continuing with a proceeding therein on the ground that the proceeding is without or in excess of jurisdiction or contrary to the laws of the land, statutory or otherwise. Want of Jurisdiction may arise from the nature of the subject matter, so that the inferior court may not have authority to enter on the inquiry or upon some part of it. Administrative law has greatly demarcated the checks, balances and permissible area of an exercise of power, authority and jurisdiction over administrative actions enforced by the any State, Governmental agencies and instrumentalities defined under Article 12 of the Constitution of India.
Rules applying to a mandamus include: The requested act must be used as a judicial remedy. How To Submit Your Article:. E Quo Warranto- This writ is issued by the Supreme Court or the High Court to stop a person or restrain him from holding the office which he has no authority to hold. The most commonly used types of writ issued include subpoenas, warrants, and prerogative writs, all of which are used to initiate some action. MyAdvo lets you anywhere in India online.
Following are explained the stages of writ petition that you should know in order to file a petition in the high court or supreme court. If no superintending tribunal of this nature were established, different courts might adopt different and even contradictory rules of decision; and the distractions, springing from these different and contradictory rules, would be without remedy and without end. Mandamus can be issued against a natural person if he is exercising a public or a statutory power of doing a public or a statutory duty. An unauthorized person issues the writ in case of an illegal usurpation of public office. If the Court grants the filing of the petition, the case will be schedule for the filing of briefs and then for an oral argument. The writ calls upon the holder of a public office to show to the court under what authority he is holding the office in question.
Acquiescence is no ground for refusing quo warranto in case of appointment to public office of a disqualified person, though it may be a relevant consideration in the case of election When the office is abolished no information in the nature of quo warranto will lie. This was not on the ground of res judicata as much as on the ground of judicial discipline, which required that in matters relating to exercise of discretion, a party could not be allowed to take chance in different forums. And the judiciary is dynamically carving the principles and exceptions, while making the judicial review of administrative actions. As the United States expanded in the nineteenth century, the federal judicial system became increasingly strained, and the Supreme Court, which routinely took three months off every year, not surprisingly had a backlog of cases several years long. The conditions necessary for the issue of a writ of quo warranto are as follows: i The office must be public and it must be created by statute or by the Constitution itself; ii The office must be a substantive one and not merely the function or employment of a servant at the will and during the pleasure of another. Writ of Certiorari is a curative writ. Thus, certiorari is a kind of curative writ.
It is submitted, the trend is to read the social justice and to translate in reality. Scope and Grounds In the case of Anand Bihari v. To explore this concept, consider the following writ of certiorari definition. The Supreme Court passes such writ in a situation when a duty is to be performed by the public authority, corporation or a lower Court and such duty is not performed by them. The authority may also be prevented from doing an act, which he is not entitled to do.
For example, when the court passes an order for a case which they had no power to do so, the aggrieved can apply for the writ of certiorari. While a writ of mandamus is issued for any activity that is not legal, the writ of petition is issued against the lower courts, such as magistrates and commissions, for inactivity in the matter of concern. In simple terms, it can be said that the writ of certiorari is issued when the subordinate court or the quasi-judicial bodies acts in absence of their jurisdiction, exceeds their jurisdiction or fails to make use of their jurisdiction. Thus, it cannot merely be considered as an individual's right to move the Supreme Court but it is also the duty and responsibility of the Supreme Court to protect the fundamental rights. It will not lie for the interference in the internal administration of the authority. India has also done so, empowering the Supreme Court and the High Courts to issue such writs.